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EXHIBIT 10.109
AMENDMENT AND RESTATED
SUBORDINATED SECURITY AGREEMENT
SUBORDINATED SECURITY AGREEMENT, dated as of September 4, 1998 between
ONYX ACCEPTANCE FINANCIAL CORPORATION, a Delaware corporation ("Xxxxx") and ONYX
ACCEPTANCE CORPORATION, a Delaware corporation (the "Seller")
W I T N E S S E T H :
WHEREAS, pursuant to the Amended and Restated Sale and Servicing
Agreement (the "Sale Agreement") dated as of the date hereof between the Seller
and Xxxxx, the Seller from time to time sells to Xxxxx and Xxxxx from time to
time purchases from the Seller certain loans secured by automobiles and light
trucks (the "Contracts");
WHEREAS, a portion of the purchase price for the Contracts is
represented by a subordinated note issued by Xxxxx to the Seller (the
"Subordinated Note");
WHEREAS, Xxxxx has entered into the Amended and Restated Triple-A One
Security Agreement dated as of the date hereof (the "Triple-A One Security
Agreement") with Triple-A One Funding Corporation ("Triple-A One") and Capital
Markets Assurance Corporation, as collateral agent (the "Collateral Agent")
pursuant to which Xxxxx has granted to the Collateral Agent a first priority
security interest in the Contracts and certain other collateral;
WHEREAS, in order to secure the Subordinated Note, Xxxxx has granted to
the Seller a subordinated security interest in the Contracts and certain other
collateral, subject to the prior rights of the Collateral Agent;
WHEREAS, the Seller's security interests in the Contracts and certain
other collateral granted pursuant to this Agreement is subordinated to the
rights of the Collateral Agent and its rights to exercise any remedies under
this Agreement are limited for so long as any amounts secured under the Triple-A
One Security Agreement or the Note Pledge Agreement are outstanding; and
WHEREAS, the Seller and Xxxxx wish to amend and restate this
Subordinated Security Agreement as hereinafter provided;
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NOW, THEREFORE, in consideration of the premises and to induce the
Seller to sell Contracts to Xxxxx pursuant to the Sale Agreement, Xxxxx hereby
agrees with the Seller as follows:
SECTION 1. Defined Terms.
(a) As used in this Subordinated Security Agreement or
any certificate or other document made or delivered
pursuant hereto, the capitalized terms used herein
and therein shall, unless otherwise defined herein,
have the meanings assigned to them in the Amended and
Restated Definitions List dated as of the date hereof
that is attached to the Sale Agreement, which is
incorporated herein by reference (the "Definitions
List").
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto,
accounting terms not defined in the Definitions List
and accounting terms partly defined in the
Definitions List to the extent not defined, shall
have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this
Subordinated Security Agreement shall refer to this
Subordinated Security Agreement as a whole and not to
any particular provision of this Subordinated
Security Agreement, and paragraph references are to
this Subordinated Security Agreement unless otherwise
specified.
(d) Capitalized terms used herein shall be equally
applicable to both the singular and plural forms of
such terms.
(e) The following terms that are defined in the UCC are
used herein as so defined: Chattel Paper, Equipment,
General Intangibles, Instruments and Proceeds.
SECTION 2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether
at the stated maturity or otherwise) of the Subordinated Note
and all other obligations of Xxxxx to the Seller hereunder
(collectively, the "Obligations") and subject to the prior
rights of the Collateral Agent under the Triple-A One Security
Agreement, Xxxxx hereby assigns, pledges, grants, conveys,
transfers, delivers and sets over to the Seller a security
interest in all Xxxxx'x right, title and interest in, to and
under the following, whether now owned or hereafter acquired,
in each case only as related to the Purchased Contracts
(collectively, the "Collateral"). For further clarification,
all Collateral as
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heretofore described in this Section 2 shall relate to and be
in respect of Purchased Contracts as defined herein, subject
to any and all provisos, as applicable, expressly included in
the definition thereof.
(a) all chattel paper, including, without limitation, the
Purchased Contracts and other contracts related to
the Purchased Contracts (as the same may be amended,
modified, supplemented, restated or replaced from
time to time) and amounts paid or payable with
respect thereto;
(b) all Files (including all Dealer Assignments) and
Contract Lists, and all right, title and interest of
Xxxxx in and to the documents, agreements and
instruments included in the Files, including, without
limitation, rights of recourse of Xxxxx against
Vehicle Dealers;
(c) all Insurance Policies and all rights of Xxxxx in all
Insurance Policies;
(d) all security interests, Liens, guaranties, mortgages
and other encumbrances in favor of or assigned or
transferred to Xxxxx in and to Contracts and
Vehicles, and all accessions thereto and replacements
thereof, and in any other property in which a
security interest is assigned or transferred to
Xxxxx;
(e) all of Xxxxx'x Equipment, general ledger sheets,
files, records, books of account, invoices, bills,
certificates or documents of ownership, bills of
sale, business papers, correspondence, tapes, cards,
computer tapes and all other data and data storage
systems (whether in the possession of Xxxxx or any
other Person) relating to any of the foregoing;
(f) all deposit accounts, moneys, deposits, funds,
accounts and instruments relating to the foregoing;
(g) each Lock-Box, the funds on deposit in the Clearing
Account pursuant to Section 5(d) of the Triple-A One
Security Agreement, the Collection Account
(including, without limitation, all funds at any time
on deposit therein and all Permitted Investments in
which such funds may at any time be invested);
(h) all Operative Documents to which Xxxxx is a party,
including, without limitation, all rights of Xxxxx to
amounts due or to become due under or in connection
with such agreements;
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(i) any Hedge Agreement;
(j) all rights in and to the On-Line Service Agreement;
and
(k) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing.
SECTION 3. Notice to Obligors. Subject to the terms of Section 21
hereof and Section 5.3 of the Sale Agreement and of the other
Operative Documents, at any time upon the request of the
Seller, Xxxxx shall notify the Obligors that the Purchased
Contracts have been reassigned to the Seller and that payments
in respect thereof shall be made directly to the Seller.
Subject to the terms of Section 21 hereof and Section 5.3 of
the Sale Agreement and of the other Operative Documents, the
Seller may in its own name or in the name of others
communicate with the Obligors to verify with them to its
satisfaction the existence, amount and terms of any Purchased
Contracts.
(a) Analysis of Contracts. Subject to the terms of
Section 21 hereof, Section 5.3 of the Sale Agreement
and of the other Operative Documents, the Seller
shall have the right to make test verifications of
the Contracts in any manner and through any medium
that it considers advisable, and Xxxxx shall furnish
or cause to be furnished by the Servicer all such
assistance and information as the Seller may require
in connection therewith. In addition, at any time and
from time to time, upon the Seller's request, Xxxxx
shall cause independent public accountants or others
satisfactory to the Seller to furnish to the Seller
reports showing reconciliations, aging and test
verifications of, and trial balances for, the
Contracts.
(b) Proceeds. Subject to the terms of Section 21 hereof
and Section 5.3 of the Sale Agreement and of the
other Operative Documents, any Proceeds, when
collected by Xxxxx, shall be forthwith turned over to
the Seller by Xxxxx in the exact form received, duly
endorsed by Xxxxx to the Seller, and until so turned
over, shall be held by Xxxxx in trust for the Seller.
Such Proceeds shall continue to be collateral
security for all of the Obligations and shall not
constitute payment thereof until applied as set forth
in the Triple-A One Security Agreement. Subject to
the terms of Section 21 hereof and Section 5.3 of the
Sale Agreement and of the other Operative Documents,
upon the request of the Seller, Xxxxx shall deliver
or cause to be delivered to the Seller all Files
relating to the Purchased Contracts, including
original and other documents evidencing, and relating
to, the transactions which created the Purchased
Contracts, including,
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without limitation, all original orders, invoices,
receipts and similar documents.
(c) Document Delivery. Subject to the terms of Section 21
hereof (it being understood that for so long as the
Triple-A One Security Agreement is in effect the
provisions of that Agreement shall control), upon the
request of the Seller, Xxxxx shall deliver to the
Seller the original Contract and complete Files
relating to each Purchased Contract. In addition,
Xxxxx shall xxxx the following notation on the
computer tape for such Contract and File: "The
Contracts herein have been pledged to secure the debt
of Xxxxx to Onyx Acceptance Corporation, and its
successors and assigns pursuant to that certain
Amended and Restated Subordinated Security Agreement
dated as of September 4, 1998 between Onyx Acceptance
Corporation and Xxxxx".
SECTION 4. Representations and Warranties. Xxxxx hereby represents and
warrants that:
(a) Title; No Other Liens. Except for the Lien granted to
the Collateral Agent pursuant to the Triple-A One
Security Agreement and the Lien granted to the Seller
pursuant to this Subordinated Security Agreement and
the other Liens permitted pursuant to any of the
other Operative Documents, Xxxxx owns each item of
the Collateral free and clear of any and all Liens or
claims of others. No security agreement, financing
statement or other public notice with respect to all
or any part of the Collateral is on file or of record
in any public office, except such as may have been
filed in favor of the Collateral Agent pursuant to
the Triple-A One Security Agreement and in favor of
the Seller pursuant to this Subordinated Security
Agreement or as may be permitted pursuant to any
Operative Document.
(b) Perfected Liens. The Liens granted pursuant to this
Subordinated Security Agreement constitute perfected
Liens on the Collateral in favor of the Seller,
subject only to the prior Lien of the Collateral
Agent, and are enforceable as such against all
creditors of and purchasers from Xxxxx and, in the
case of any Collateral constituting fixtures, against
any owner or purchaser of the real property where any
of the Equipment is located and any present or future
creditor obtaining a Lien on such real property.
(c) Chief Executive Office. Xxxxx'x chief executive
office and chief place of business is located at 0000
Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000.
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(d) Locations. All Collateral is located at the addresses
listed on Schedule 4(d) hereto.
SECTION 5. Covenants. Subject to the terms of Section 21 hereof and
Section 5.3 of the Sale Agreement, Xxxxx covenants and agrees
with the Seller that until the Obligations are paid in full
and the Sale Agreement is terminated:
(a) Further Documentation. At any time and from time to
time, upon the written request of the Seller, and at
the sole expense of Xxxxx, Xxxxx will promptly and
duly execute and deliver such further instruments and
documents and take such further action as the Seller
may request for the purpose of obtaining or
preserving the full benefits of this Subordinated
Security Agreement and of the rights and powers
herein granted, including, without limitation, the
filing of any financing or continuation statements
under the UCC with respect to the Liens created
hereby, including all steps necessary to maintain
perfection of the security interest of Xxxxx in each
Vehicle; provided, however, that Xxxxx shall not be
obligated to take any action which, in the reasonable
judgment of the Collateral Agent, would violate or
conflict with the terms of the Triple-A One Security
Agreement or any other Operative Document. Subject to
the terms of Section 21 hereof and Section 5.3 of the
Sale Agreement and of the other Operative Documents,
Xxxxx also hereby authorizes the Seller to file any
such financing or continuation statement without the
signature of Xxxxx to the extent permitted by
applicable law.
(b) Maintenance of Records. Xxxxx will keep and maintain,
or cause to be maintained by the Servicer, at its
cost and expense satisfactory and complete records of
the Collateral, including, without limitation, a
record of all payments received and all credits
granted with respect to the Purchased Contracts.
Xxxxx will xxxx or cause the Servicer to xxxx its
books and records pertaining to the Collateral to
evidence this Subordinated Security Agreement and the
subordinated security interest granted hereby. With
the prior written consent of the Collateral Agent, at
any time upon the request of the Seller, Xxxxx shall,
during normal business hours, turn over or cause the
Servicer to turn over any books and records to the
Seller or to its designated representatives.
(c) Compliance with Laws, etc. Xxxxx will comply with all
Requirements of Law applicable to the Collateral or
any part thereof or to the operation of Xxxxx'x
business; provided, however, that Xxxxx may contest
any Requirement of Law in any reasonable
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manner which shall not, in the sole opinion of the
Seller, adversely affect the Seller's rights or the
priority of its Liens on the Collateral.
(d) Compliance with Terms etc. Xxxxx will perform and
comply with all its Contractual Obligations relating
to the Subordinated Note.
(e) Limitation on Liens on Collateral. Xxxxx will not
create, incur or permit to exist, will defend the
Collateral against, and will take such other action
as is necessary to remove, any Lien or claim on or to
the Collateral, other than the Liens created by the
Triple-A One Security Agreement, the Liens created
hereby and other than as permitted pursuant to the
Operative Documents, and will defend the right, title
and interest of the Seller in and to any of the
Collateral against the claims and demands of all
Persons whomsoever.
(f) Limitations on Dispositions of Collateral. Xxxxx will
not sell, transfer, lease or otherwise dispose of any
of the Collateral, or attempt, offer or contract to
do so.
(g) Limitations on Modifications, Waivers, Extensions of
Contracts. Xxxxx will not, and will not permit the
Servicer to, (i) amend, modify, terminate or waive
any provision of any Purchased Contract in any manner
which could have an adverse effect on the value of
such Purchased Contract as Collateral, (ii) fail to
exercise promptly and diligently each and every right
which Xxxxx may have under each Purchased Contract
and (iii) act otherwise than in accordance with the
Credit and Collection Policy.
(h) Limitations on Discounts, Compromises, Extensions of
Contracts. Other than pursuant to the Credit and
Collection Policy, Xxxxx will not, and will not
permit the Servicer to, grant any extension of the
time of payment of any of the Purchased Contracts,
compromise, compound or settle the same for less than
the full amount thereof, release, wholly or
partially, any Person liable for the payment thereof,
or allow any credit or discount whatsoever thereon.
(i) Maintenance of Equipment. Xxxxx will maintain each
item of Equipment in good operating condition,
ordinary wear and tear and immaterial impairments of
value and damage by the elements excepted, and will
provide all maintenance, service and repairs
necessary for such purpose.
(j) Changes in Locations, Name, etc. Xxxxx will not,
without providing 30 days prior written notice to the
Seller, and without filing any
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UCC financing statements necessary or desirable (in
the opinion of the Seller) to maintain the perfection
and priority of the Seller's security interest in the
Collateral, as provided for herein (i) change the
location of its chief executive office/chief place of
business from that specified in Section 4(c) or
remove its books and records from such location, (ii)
permit any Equipment that it may acquire to be kept
at a location other than that specified in Section
4(d), or (iii) change its name, identity or corporate
structure to such an extent that any financing
statement filed by the Seller in connection with this
Subordinated Security Agreement would become
misleading.
SECTION 6. Seller's Appointment as Attorney-in-Fact.
(a) Powers. Subject to the terms of Section 21 hereof and
Section 5.3 of the Sale Agreement and of the other
Operative Documents, Xxxxx hereby irrevocably
constitutes and appoints the Seller and any officer
or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and
stead of Xxxxx and in the name of Xxxxx or in its own
name, from time to time in the Seller's discretion,
for the purpose of carrying out the terms of this
Subordinated Security Agreement, to take any and all
lawful and appropriate action and to execute any and
all documents and instruments which may be necessary
or desirable to accomplish the purposes of this
Subordinated Security Agreement, and, without
limiting the generality of the foregoing, Xxxxx
hereby gives the Seller the power and right, on
behalf of Xxxxx, without notice to or assent by
Xxxxx, to do the following:
(i) upon the occurrence and during the
continuance of any Unmatured Wind-Down Event
or Wind-Down Event, in the name of Xxxxx or
its own name, or otherwise, to take
possession of and endorse and collect any
checks, drafts, notes, acceptances or other
instruments for the payment of moneys due
under any Instrument, General Intangible or
Purchased Contract and to file any claim or
to take any other action or proceeding in
any court of law or equity or otherwise
deemed appropriate by the Seller for the
purpose of collecting any and all such
moneys due under any Instrument, General
Intangible or Purchased Contract whenever
payable;
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(ii) to pay or discharge taxes and Liens levied
or placed on or threatened against the
Collateral; and
(iii) upon the occurrence and during the
continuance of any Unmatured Wind-Down Event
or Wind-Down Event, (A) to direct any party
liable for any payment under any of the
Collateral to make payment of any and all
moneys due or to become due thereunder
directly to the Seller or as the Seller
shall direct and to notify the Lock-Box
Banks to follow the instructions of the
Seller; (B) to ask or demand for, collect,
receive payment of and receipt for, any and
all moneys, claims and other amounts due or
to become due at any time in respect of or
arising out of any Collateral; (C) to sign
and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse
receipts, drafts against debtors,
assignments, verifications, notices and
other documents in connection with any of
the Collateral; (D) to commence and
prosecute any suits, actions or proceedings
at law or in equity in any court of
competent jurisdiction to collect the
Collateral or any thereof and to enforce any
other right in respect of any Collateral;
(E) to defend any suit, action or proceeding
brought against Xxxxx with respect to any
Collateral; (F) to settle, compromise or
adjust any suit, action or proceeding
described in clause (E) above and, in
connection therewith, to give such
discharges or releases as the Seller may
deem appropriate; (G) generally, to sell,
transfer, pledge and make any agreement with
respect to or otherwise deal with any of the
Collateral pursuant to Section 8 hereof as
fully and completely as though the Seller
were the absolute owner thereof for all
purposes, and to do, at the Seller's option
and Xxxxx'x expense, at any time, or from
time to time, all lawful acts and things
which the Seller deems necessary to protect,
preserve or realize upon the Collateral and
the Seller's Liens thereon and to effect the
intent of this Subordinated Security
Agreement, all as fully and effectively as
Xxxxx might do; and (H) compel the transfer
of Xxxxx'x interest in all rights (by
license, sublicense or otherwise) of any
computer software necessary to collect the
Purchased Contracts including without
limitation, any items on Schedule I hereto.
Xxxxx hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof.
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(b) Other Powers. Subject to the terms of Section 21
hereof and Section 5.3 of the Sale Agreement and of
the other Operative Documents, Xxxxx also authorizes
the Seller, at any time and from time to time, to
execute, in connection with the sale provided for in
Section 8 hereof, any endorsements, assignments or
other instruments of conveyance or transfer with
respect to the Collateral.
(c) No Duty on Seller's Part. The powers conferred on the
Seller hereunder are solely to protect the Seller's
interests in the Collateral and shall not impose any
duty upon it to exercise any such powers. The Seller
shall be accountable only for amounts that it
actually receives as a result of the exercise of such
powers, and neither it nor any of its officers,
directors, employees or agents shall be responsible
to Xxxxx for any act or failure to act hereunder,
except for its own gross negligence or willful
misconduct.
SECTION 7. Performance by Seller of Xxxxx'x Obligations. Subject to
the terms of Section 21 hereof and Section 5.3 of the Sale
Agreement and of the other Operative Documents, if Xxxxx fails
to perform or comply with any of its agreements contained
herein, the Seller, as provided for by the terms of this
Subordinated Security Agreement, shall itself perform or
comply, or otherwise cause performance or compliance, with
such agreement.
SECTION 8. Remedies. Subject to the terms of Section 21 hereof and
Section 5.3 of the Sale Agreement and of the other Operative
Documents, if a Wind-Down Event shall occur and be continuing,
the Seller may exercise in addition to all other rights and
remedies granted to it in this Subordinated Security Agreement
and in any other instrument or agreement securing, evidencing
or relating to the Obligations, all rights and remedies of a
secured party under the UCC. Without limiting the generality
of the foregoing, the Seller, without demand of performance or
other demand, presentment, protest, advertisement or notice of
any kind (except the notice specified below of time and place
of public or private sale) to or upon Xxxxx or any other
Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give an option or options to
purchase, or otherwise dispose of and deliver said Collateral
or any part thereof (or contract to do any of the foregoing),
in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Seller or
elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any
credit risk. The Seller shall have
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the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of said Collateral so sold,
free of any right or equity of redemption in Xxxxx, which
right or equity is hereby waived or released. Xxxxx further
agrees, at the Seller's request, to assemble the Collateral
and the Files and make them available to the Seller at places
which the Seller shall select, whether at Xxxxx'x premises or
elsewhere. The Seller shall apply the net proceeds of any such
collection, recovery, receipt, appropriation, realization or
sale, after deducting all costs and expenses of every kind
incurred therein or incidental to the care or safekeeping of
any of the Collateral or in any way relating to the Collateral
or the rights of the Seller hereunder, including, without
limitation, attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the
Seller may elect, and only after such application and after
the payment by the Seller of any other amount required by any
provision of law, including, without limitation, Section
9-504(1)(c) of the UCC, need the Seller account for the
surplus, if any, to Xxxxx. To the extent permitted by
applicable law, Xxxxx waives all claims, damages, and demands
against the Seller arising out of the repossession, retention
or sale of the Collateral. If any notice of a proposed sale or
disposition of Collateral shall be required by law, such
notice shall be deemed reasonably and properly given if given
(effective upon dispatch) in any manner provided in the Sale
Agreement at least 10 days before such sale or disposition.
Xxxxx shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are
insufficient to pay the Obligations and the fees and
disbursements of any attorneys employed by the Seller to
collect such deficiency.
SECTION 9. Limitation on Seller's Duties in Respect of Collateral. The
Seller's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession,
under Section 9-207 of the UCC, shall be to deal with it in
the same manner as the Seller deals with similar property for
its own account. Neither the Seller nor any of its directors,
officers, employees or agents shall be liable for failure to
demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon
the request of Xxxxx or otherwise.
SECTION 10. Powers Coupled with an Interest. All powers of attorney,
authorizations and agencies herein contained with respect to
the Collateral are irrevocable and are powers coupled with an
interest.
SECTION 11. Severability. Any provision of this Subordinated Security
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such
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jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 12. Assignment. Xxxxx does hereby acknowledge that the Seller
may pledge or otherwise transfer the Subordinated Note and all
security therefore granted hereunder with the prior written
consent of Triple-A One and the Program Manager. Xxxxx hereby
waives its rights under Section 9-112 of the UCC, including
without limitation all rights under Sections 9-502(2),
9-504(1), 9-208, 9-505, 9-506, 9-507(1) and 9-208(2) of the
UCC otherwise granted to it pursuant to Section 9-112 of the
UCC.
SECTION 13. Section and Paragraph Headings. The section and paragraph
headings used in this Subordinated Security Agreement are for
convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the
interpretation hereof.
SECTION 14. No Waiver; Cumulative Remedies. The Seller shall not by any
act (except pursuant to the execution of a written instrument
pursuant to Section 15 hereof), delay, indulge, omit or
otherwise be deemed to have waived any right or remedy
hereunder or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising,
on the part of the Seller, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the
exercise or any other right, power or privilege. A waiver by
the Seller of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or
remedy which the Seller would otherwise have on any future
occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
SECTION 15. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Subordinated Security Agreement
may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by Xxxxx and the
Seller with the prior written consent of the Collateral Agent
and the Program Manager; provided, however, that for so long
as the Triple-A One Security Agreement shall be in effect, if
the Collateral Agent shall have consented to a waiver,
amendment, supplement or modification under the Triple-A One
Security Agreement, the consent of the Seller shall be deemed
automatically given under the comparable provision of this
Subordinated Security Agreement. No amendment shall be
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effective without prior written notice thereof to S&P and
Xxxxx'x. This Subordinated Security Agreement shall be binding
upon the successors and assigns of Xxxxx and shall inure to
the benefit of the Seller and its successors and assigns.
SECTION 16. Integration. This Subordinated Security Agreement
represents the agreement of Xxxxx with respect to the subject
matter hereof, and there are no promises, undertakings,
representations or warranties by the Seller relative to
subject matter hereof not expressly set forth or referred to
herein or in the other Operative Documents.
SECTION 17. Counterparts. This Subordinated Security Agreement may be
executed by one or more of the parties to this Subordinated
Security Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
SECTION 18. GOVERNING LAW. THIS SUBORDINATED SECURITY AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF XXXXX UNDER THIS SUBORDINATED
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
SECTION 19. Termination and Release.
(a) This Subordinated Security Agreement and the security
interests created or granted hereby shall remain in
full force and effect until the indefeasible payment
in full in cash of the Obligations and the
Subordinated Note, at which time, following the
receipt by the Seller of (i) written notice from the
Program Manager that the Obligations have been so
paid, and (ii) payment in full of the Subordinated
Note, the security interest created or granted hereby
shall terminate and the Seller shall, execute and
deliver such documents and instruments (including
without limitation UCC termination statements)
necessary to evidence the termination of such
security interest, as Xxxxx may reasonably request.
(b) (i) Xxxxx Request for Release. Xxxxx intends from
time to time to sell Purchased Contracts and other
related Collateral to (x) entities which will then
privately or publicly sell securities backed by such
Purchased Contracts and Collateral, (y) in whole loan
bulk sales to unaffiliated third parties or (z) in
whole loan bulk sales to Onyx Acceptance Funding
Corporation, in each case, for a cash purchase price
of not less than the
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aggregate Outstanding Balance of such Purchased
Contracts plus accrued and unpaid interest thereon.
The proceeds of all sales by Xxxxx pursuant to
clauses (x), (y) and (z) above shall be applied to
prepay the Triple-A One Note and the Subordinated
Note. Upon not less than 5 Business Days' prior
written notice to the Seller, Xxxxx may request that
specified Purchased Contracts and other related
Collateral be released in connection with such sales
and the prepayment. In connection with such request,
Xxxxx shall execute and deliver to the Seller a Lien
Release Request Certificate in the form attached
hereto as Exhibit A. In selecting the Purchased
Contracts enumerated in its Lien Release Request
Certificate delivered to the Seller pursuant hereto,
Xxxxx shall employ selection procedures which are not
adverse to the interests of the Seller.
(ii) Seller Release. Upon the release by the
Collateral Agent of its interest in whole or in part in the
Purchased Contracts pursuant to Section 23(b) of the Triple-A
One Security Agreement, the Seller shall, at the sole expense
of Xxxxx, execute and deliver a Seller Lien Release
Certificate in the form attached hereto as Exhibit B which
shall evidence the release of its security interest in the
Purchased Contracts released by the Collateral Agent under the
Triple-A One Security Agreement.
(iii) Documents and Filings. In connection with any
such release pursuant to this Section 19, Xxxxx and the
Seller, shall at the sole expense of Xxxxx, execute and
deliver any documents and instruments necessary to evidence
the release of the Seller's security interest in such
Purchased Contracts and other Collateral, including without
limitation, forms UCC-2 prepared for filing in all appropriate
jurisdictions.
SECTION 20. Conflict. In the event of any conflict between the terms
of this Subordinated Security Agreement, on the one hand, and
the terms of the Subordinated Note, Section 5.3 of the Sale
Agreement or any other Operative Document, on the other hand,
the terms of the Subordinated Note, Section 5.3 of the Sale
Agreement or such other Operative Document, as the case may
be, shall prevail.
SECTION 21. Standstill on Exercise of Rights. The Seller and Xxxxx
agree that neither the Seller nor any permitted assignee of
the Seller may exercise or take any action to enforce any of
the rights granted by Xxxxx to the Seller in this Subordinated
Security Agreement until such time as all of the Obligations
(as defined in the Definitions List) of Xxxxx to Triple-A One,
the Banks, the Surety Provider, the Program Manager, the
Collateral Agent, the Bank Agent and the Bank Collateral Agent
under the Operative Documents have been indefeasibly paid in
full in cash.
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IN WITNESS WHEREOF, the parties hereto have caused this Subordinated
Security Agreement to be duly executed and delivered as of the date first above
written.
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:_________________________________
Name:
Title:
ONYX ACCEPTANCE CORPORATION
By:_____________________________
Name:
Title:
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SCHEDULE 4(d)
Locations of Collateral
The Collateral is located at:
1. Onyx Acceptance Financial Corporation
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
2. Bankers Trust Company of California, N.A.
0 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx
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SCHEDULE I
Intellectual Property
1. Agreement for On-Line Service
2. Acknowledgement of Security Interest Under Agreement for On-Line
Service
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EXHIBIT A
LIEN RELEASE REQUEST CERTIFICATE
from Xxxxx to the Collateral Agent and Seller
pursuant to Section 23 of Triple-A One Security Agreement
and Section 19 of Subordinated Security Agreement
[ date ]
Capital Markets Assurance Corporation,
as Collateral Agent
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Underwriting Officer
Onyx Acceptance Corporation
0000 Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Re: Onyx Acceptance Financial Corporation/Commercial
Paper Program - Request for Release of Lien
Ladies and Gentlemen:
Onyx Acceptance Financial Corporation ("Xxxxx") refers to (i)
the Amended and Restated Triple-A One Security Agreement dated as of September
4, 1998 as amended, supplemented or otherwise modified, (the "Triple-A One
Security Agreement"), and (ii) the Amended and Restated Subordinated Security
Agreement dated as of September 4,1998 (as amended, supplemented or otherwise
modified, the "Subordinated Security Agreement"). Terms not otherwise defined
herein are used herein as defined in the Amended and Restated Definitions List
dated September 4, 1998.
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Xxxxx submits this Lien Release Request Certificate pursuant
to Section 23 of the Triple-A One Security Agreement and Section 19 of the
Subordinated Security Agreement and requests that the Capital Markets Assurance
Corporation, in its capacity as Collateral Agent under the Triple-A One Security
Agreement and Onyx Acceptance Corporation in its capacity as Seller under the
Subordinated Security Agreement ("Onyx") release (and Onyx cause its assignee to
release) all of their liens on and security interests in the assets described on
Schedule 1 attached hereto (and all proceeds thereof, all books, records and
computer records pertaining thereto and all other assets that constitute
Collateral which are specifically related to the assets described in Schedule
1).
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
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EXHIBIT B
SELLER LIEN RELEASE CERTIFICATE
pursuant to Section 19 of Subordinated Security Agreement
[Date]
Onyx Acceptance Financial Corporation
0000 Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Re: Partial Collateral Release
Ladies and Gentlemen:
We hereby refer to the Lien Release Request Certificate
submitted by Onyx Acceptance Financial Corporation ("Xxxxx") dated
__________________________, a copy of which is attached hereto (the "Request
Certificate"). Pursuant to the Request Certificate, Onyx Acceptance Corporation,
acting in its capacity as Seller under the Subordinated Security Agreement,
hereby releases (and represents and warrants that it has caused its assignee to
so release) its liens on and security interests in the assets identified in
Schedule 1 attached to the Request Certificate (and all proceeds thereof, all
books, records and computer records pertaining thereto and all other assets that
constitute Collateral which are specifically related to the assets described in
that Schedule 1).
This Lien Release Certificate may be executed in any number of
counterparts.
ONYX ACCEPTANCE CORPORATION
as Seller
By:_________________________________
Name:_______________________________
Title:______________________________
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